Montrose Industrial Bank v. Merchants Bank

Appeal by plaintiff from a judgment in favor of defendant, and ( from an order denying plaintiff’s motion for leave to file an amended complaint so as to conform the pleadings to the proof, and granting defendant’s motion, made at the end of plaintiff’s case, to dismiss the complaint. Order and judgment reversed on the law and a new trial granted, with costs to abide the event, with leave to plaintiff to serve an amended complaint within ten days from the entry of the order hereon. Upon the undisputed evidence, it appears that plaintiff was the assignee of certain accounts receivable and that the assignor of said accounts deposited a check, received in payment of those accounts and others, with the defendant, who retained the proceeds thereof. That proof and other documentary evidence in the record established a prima facie case and it was error to dismiss the complaint, whether it be regarded as pleading conversion, or money had and received. Lewis, P. J., Hagarty, Carswell, Adel and Nolan, JJ., concur.